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Second Circuit Sheds Light On Voir Dire Challenges

In United States v. Mendlowitz, the Second Circuit (Kearse, Pooler, and Menashi) issued a summary order in which the panel affirmed the defendant-appellant’s conviction for wire fraud and conspiracy to commit wire fraud.[i] In so doing, the Court determined that the district court had not erred when it failed to ask specifically about potential antisemitic bias during voir dire. The Court also rejected Mendlowitz’s other arguments regarding the exclusion of expert witness testimony as well as the exclusion of a recording of Mendlowitz during trial, finding those to be harmless error individually and cumulatively. While this is a non-precedential summary order, the Court’s ruling sheds light on how the Court of Appeals views voir dire challenges. This is especially notable in the immediate aftermath of the Court’s recent decision in United States v. Nieves, where the Second Circuit reversed for the first time a conviction for the failure to ask a particular question of prospective jurors.[1] 


Mendlowitz served as the President and CEO of Commerce Payment Systems (“CPS”), a payment processing company. He managed a sales operation in which specific fees and rates were promised but then increased without warning. Mendlowitz was accused of a range of misconduct, including authorizing misleading sales scripts for sales agents as well as failing to provide Terms and Conditions sheets in contracts with merchants. Mendlowitz also utilized a system that would auto-sign the Terms and Conditions sheets after merchants signed the first page, such that they did not need to review any other pages of the agreement. For these actions, he was tried and convicted for wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349.

As an Orthodox Jew who wears a yarmulke, Mendlowitz’s counsel feared that jurors would be unduly biased towards him on the basis of his religion and its obviously visible nature. This was even more troublesome for defense counsel given the context of the charges against his client, as it could play into the age-old stereotype of Jews controlling finances. As such, defense counsel requested that the district court ask potential jurors the following questions during voir dire to gauge antisemitic bias: (1) “The defendant is Jewish-American. Do you have any personal views towards Jewish people that would cause you to doubt in anyway your ability to be a fair and impartial juror in a financial case?” (2) “Do you have any views on Jewish people in business or related to finance—either positive or negative—that would affect your ability to be a fair and impartial juror?” The government objected to these questions as irrelevant to the charges in the case and as improperly implying that the prosecution was driven by antisemitism.

The district court ultimately did not allow these two questions to be asked of the jury at voir dire. Instead, the court asked jurors: “Would anything about the physical appearance of Mr. Mendlowitz influence you in this case and/or cause you to doubt in any way your ability to be a fair and impartial juror…in a financial case?” Mendlowitz argued that the district court’s failure to ask the two questions that he proposed deprived him of the right to a fair and impartial jury.

The Second Circuit’s Decision

The Second Circuit determined that the district court did not err when it rejected Mendlowitz’s proposed questions for voir dire and instead asked a question about his physical appearance. The Court reasoned that the district court’s question was a “reasonable substitute” as it had the same purpose of removing a juror with bias regarding the defendant’s religion. The Court noted that the district court’s question was, in fact, successful at removing one prospective juror for cause who indicated that he had obvious bias against the defendant. This juror responded to the question regarding the defendant’s appearance by stating: “The physical appearance of the defendant, yes, he’s wearing a yarmulke and he’s supposed to be a student of the Torah. He’s not supposed to steal. That is my initial impression.”

In determining that the district’s court’s question during voir dire was acceptable, the Second Circuit distinguished its recent decision, United States v. Nieves, which reversed a conviction due to the district court’s failure to screen out juror bias.[ii] In that case, evidence of the defendant’s participation in a gang was at the forefront of the government’s theory of the case and defendants proposed posing questions to the jurors regarding gang-related bias. The district court not only declined to ask any questions to determine gang bias, but also “deliberately declined to mention that the case concerned gangs at all.” The district court also did not ask prospective jurors any alternative questions about their lives or attitudes that may have helped remove biased jurors.

The Court in Mendlowitz characterized Nieves as “the rare case” in which the district court “failed to take any steps to identify a potential bias.” Here, however, the Second Circuit reasoned that the district court provided an alternative, reasonable mechanism to isolate bias, which was successful in at least one instance, and which was part and parcel of a district court’s broad discretion in the jury selection process.


Nieves was a notable case because it did something that the Circuit had never done before: “reverse[] a conviction for the failure to ask a particular question of prospective jurors,” observing that the district court’s discretion is “broad” but not “boundless.”[iii] The Nieves panel was careful to limit the reach of its holding. For one thing, the panel explained that district judges need not provide “sua sponte an exhaustive catalog of every bias that a prospective juror could conceivably track into court.”[iv] Here, however, as in Nieves, defense counsel identified the specific type of bias that needed to be screened. In this way, Nieves and Mendlowitz are analogous.

However, in Nieves, the Court focused on how the specific group at issue—gang members—had been “the persistent target of an onslaught of local and national media reports reciting the violent practices of groups,” including the gang at issue in this trial.[v] Although the rise in antisemitic conduct has been disturbingly obvious to anyone who pays attention to the news, it would be impossible to say that that Jewish Americans are the subject of the type of media coverage afforded to members of violent gangs. In addition, the Nieves decision was concerned that, unlike in other cases, the district court did not “screen[] for relevant biases in other ways.”[vi] In Mendlowitz, however, the district court did engage in some questioning, which elicited answers indicating that one juror held biases requiring a dismissal for cause.

More broadly, in Mendlowitz, the Second Circuit seemed to draw a distinction between potential juror bias based on something relevant to the case, like feelings about gangs in a gang conspiracy case, as opposed to something relevant to the defendant, like his religion. It also highlighted that while a district court must take some action to determine and protect against juror bias, which specific mechanism or questions it chooses to that end is within its discretion and the Second Circuit will not micro-manage those details. While bias in jury selection may be an area in which it seems better to be overcautious, in order to protect a defendant from discrimination and an unfair outcome, the Second Circuit has signaled that this concern for prejudice must be balanced with not overreaching into a district court’s discretion to manage voir dire as it sees fit. Given the inherent biases that many jurors will bring into the courtroom, defense counsel should continue to press these issues notwithstanding Mendlowitz, by seeking to test the biases of jurors in the district court and by appealing in those cases where the district court declined to screen for bias.


[1] We have not in this blog post discussed the other issues presented by Mendlowitz, which related to the exclusion of an expert witness, the exclusion of a recording of Mendlowitz, and certain evidentiary errors, none of which led to a reversal.


[i] U.S. v. Michael Mendlowitz, No. 21-2049, 2023 WL 2317172 (2d Cir. Mar. 2, 2023).

[ii] United States v. Nieves, 58 F.4th 623, 626 (2d Cir. 2023).

[iii] Id.

[iv] Id. at 634.

[v] Id. at 636.

[vi] Id. at 638.